United States District Court, D. Massachusetts
ORDER ON MOTION TO DISMISS (DOC. 35)
Sorokin United States District Judge.
reasons that follow, the Court ALLOWS Defendant's Motion
to Dismiss Plaintiff's Second Amended Complaint.
February 25, 2016, Plaintiff Januris Hernandez De Leon,
proceeding pro se, filed a Complaint against
Defendant Ocwen Loan Servicing, LLC. Plaintiff alleged
discrimination and violations under various state and federal
statutes. On August 1, 2016, the Court granted
Defendant's Motion to Dismiss for Failure to State a
Claim under Federal Rules of Civil Procedure Rule 8(a) and
Rule 12(b)(6) Doc. 24 at 3. Specifically, the Court
determined that the allegations of the Complaint were
conclusory. See id. The Court permitted Plaintiff
twenty-one days to file an amended complaint to cure the
pleading deficiencies identified by the Court. Id.
August 22, 2016, Plaintiff filed a timely Amended Complaint.
Doc. 26. Defendant again moved to dismiss. Doc. 27. As
explained in more detail in the Court's opinion, the
Court directed Plaintiff to file a Second Amended Complaint
to cure pleading deficiencies identified by the Court in part
because the Amended Complaint failed to set forth specific
factual allegations to support her claims. See Doc.
29 at 3, 6. The Court denied the motion to dismiss as moot in
light of its ruling and granted Plaintiff twenty-one days to
file a Second Amended Complaint. Id.
filed a timely Second Amended Complaint on September 21,
2016. Defendant again filed a Motion to Dismiss the case on
October 5, 2016. Doc. 35. For the next two months, Plaintiff
neither responded to Defendant's Motion nor requested an
extension of time. Doc. 38 at I. On December 6, 2016, the
Court ordered Plaintiff to respond by December 28, 2016 and
warned that this case will be dismissed if Plaintiff fails to
do so. Id. at 2. On January 3, 2017, five days after
the Court-imposed filing deadline, Plaintiff filed a
response. Notwithstanding the late response and the
Court's “inherent power to dismiss case[s] sua
sponte for failure to prosecute, ” Dietz v.
Bouldin, 136 S.Ct. 1885, 1892 (2016) (citing, inter
alia, Link v. Wabash R. Co., 370 U.S. 626,
631-32 (1962)), the Court considers the merits of the
Second Amended Complaint suffers from the same pleading
deficiencies that Court previously identified and fails to
state a claim upon which relief may be granted.
Court explained, Rule (8)(a) demands “more than an
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Plaintiff's allegations must include
“more than labels and conclusions.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
survive a motion to dismiss, a complaint must contain
sufficient factual matter to state a claim to relief that is
plausible on its face. Iqbal, 556 U.S. at 678. There
must be enough factual content to allow the court to
“draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Meeting this standard is important because a pleading must
provide a defendant with “fair notice of what the . . .
claim is and the grounds upon which it rests.”
Silverstrand Invs. v. AMAG Pharm., Inc., 707 F.3d
95, 101 (1st Cir. 2013) (quoting Ocasio-Hernandez v.
Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011))
(alteration in original).
alleges a claim unlawful discrimination. Doc. 34 at 2.
Plaintiff asserts that Citibank refused a loan modification
“since the plaintiff is a minority home owner”
but has failed to allege any specific facts that suggest that
the refusal was motivated by a discriminatory bias.
Id. Plaintiff's claims in the Opposition to
Defendant's Motion are similarly vague and speculative.
Plaintiff asserts that “Defendant has treated the
plaintiff differently” and that “this fact by
itself is evidence of discrimination.” Doc. 40 at 2.
But Plaintiff has not provided any basis for concluding that
Citibank treated her differently than others with similar
financial records. Plaintiff has also not made any assertions
regarding Defendant's specific actions or communications
that demonstrate a discriminatory animus. Accordingly, Count
I of the Second Amended Complaint fails to cure the pleading
deficiencies previously explained by the Court. Doc. 29 at
3-4. Thus, it is dismissed.
also alleges a claim under the Home Affordable Mortgage
Program (“HAMP”). Doc. 34 at 2-3. As the Court
previously noted, HAMP does not provide a private right of
action; Plaintiff cannot bring a claim solely based on the
ground that Defendant violated HAMP. See, e.g.,
Molina v. Aurora Loan Servs., LLC, 635 F. App'x
618, 624-626 (11th Cir. 2015). Instead, Plaintiff may use the
HAMP guidelines as the basis for a state law claim, such as a
claim for breach of contract or for violation of the
Massachusetts consumer protection statute, Chapter 93A of the
Massachusetts General Laws. See, e.g., Hannigan
v. Bank of Amer., N.A., 48 F.Supp.3d 135, 142-43 (D.
Mass. 2014); Stagikas v. Saxon Mortg. Servs., Inc.,
795 F.Supp.2d 129, 135-37 (D. Mass. 2011); Morris v. BAC
Home Loans Servicing, 775 F.Supp.2d 255, 259 (D. Mass.
2011). Plaintiff has neither alleged a separate state law
cause of action nor pled sufficient factual allegations to
support such a claim.